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No. 90-1348 UNITED STATES of AMERICA

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No. 90-1348 UNITED STATES of AMERICA IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 90-1348 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS CHRISTOPHER BARRY GREER, DANIEL ALVIS WOOD, SEAN CHRISTIAN TARRANT, MICHAEL LEWIS LAWRENCE, and JON LANCE JORDAN, Defendants-Appellants. __________________________ Appeals from the United States District Court for the Northern District of Texas __________________________ (July 30, 1992) Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DEMOSS, Circuit Judges. PER CURIAM: This case was taken en banc to review issues concerning jury selection discussed in part II of the panel opinion. See United States v. Greer, 939 F.2d 1076, 1084-86 (5th Cir.), vacated for rehearing en banc, 948 F.2d 934 (5th Cir. 1991). Except as to part II, we reinstate the panel opinion. As relates to the issues in part II, the court unanimously holds that the district court did not err in refusing to strike for cause all blacks, Hispanics, and Jewish jurors. Otherwise, as a consequence of an equally divided court the actions and decisions of the district court, as discussed in part II, and the convictions are AFFIRMED by operation of law.1 JERRY E. SMITH, Circuit Judge, with whom GOLDBERG, KING, DUHÉ, WIENER, BARKSDALE, AND EMILIO M. GARZA, Circuit Judges, join, would affirm the district court for the following reasons: I. At trial, the defendants requested that the court strike for cause all black, Hispanic, and Jewish prospective jurors.2 Defendants also requested that all prospective jurors be asked whether they are Jewish. The court refused both requests. We have chosen to review en banc only the court's conduct of voir dire. The defendants contend that they were denied the right to a fair and impartial jury. They maintain that the district court erred in (1) not excluding all black, Hispanic, and Jewish citizens for cause from the panel of prospective jurors because they were intended victims of the alleged offenses; (2) failing to examine potential jurors regarding racial and ethnic bias so that defendants could exercise their peremptory challenges intelligently; and (3) refusing to require Jewish prospective jurors to identify themselves as such. We disagree with each of 1 "An affirmance by an equally divided court . has no precedential value, see generally Hertz v. Woodman, 218 U.S. 205, 213-14, 30 S. Ct. 621, 622-23, 54 L. Ed. 101 (1910) . ." Lacy v. General Fin. Corp., 651 F.2d 1026, 1028 (5th Cir. Unit B July 1981). 2 For a full exposition of the facts, see the panel opinion in this case. 2 these contentions and conclude that the defendants were not denied a fair and impartial jury. A. The district court correctly decided not to exclude for cause all black, Hispanic, and Jewish citizens from the panel of prospective jurors. The indictment charges defendants with conspiring against black, Hispanic, and Jewish citizens of the United States. The defendants argue that all black, Hispanic, and Jewish persons should have been excluded from the jury because they were the intended victims of the offense. We are unwilling to hold that all members of the victims' racial or religious class necessarily should be excluded in every hate crimes case in which the classes are broadly described.3 Absent a showing of individual bias, a court does not abuse its discretion when it refuses to exclude for cause an otherwise qualified class of jurors. See Smith v. Phillips, 455 U.S. 209, 215-17 (1982). Indeed, in a factually similar case, the Fourth Circuit upheld a district court's refusal to strike for cause all prospective black jurors when the defendant was an alleged white supremacist. Person v. Miller, 854 F.2d 656, 665 (4th Cir. 1988), cert. denied, 489 U.S. 1011 (1989). Instead, the court 3 The defendants argue that the indictment is framed in such a way as to make all black, Hispanic, and Jewish citizens intended victims. Assuming, arguendo, this reading of the indictment, we are not prepared to hold that such a universal victim status constitutionally mandates the exclusion of all potential jurors in those categories. Instead, the pertinent question is whether the respective members of such a universally-described victim class harbor any bias. That determination, in turn, is a prime function of voir dire examination. 3 allowed each individual juror to be questioned for bias. Id.4 B. The court adequately questioned the venire regarding potential bias against the defendants.5 The district court has broad discretion in determining how best to conduct voir dire and in deciding whether to excuse a juror. Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981); Fed. R. Crim. P. 24(a). "We grant broad discretion to the trial judge in making determinations of impartiality and will not interfere with such decisions absent a clear abuse of discretion." United States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992) (citations omitted). The test for determining whether a court has adequately questioned prospective jurors regarding bias is whether "the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present." United States v. Saimiento-Rozo, 676 F.2d 146, 148 (5th Cir. 1982). A court abuses its discretion when the scope of voir dire is inadequate to discover bias and deprives the defendant of an opportunity to make reasonable use of peremptory challenges. See United States v. Brown, 799 F.2d 134, 136 (4th Cir. 1986). 4 See also In re City of Houston, 745 F.2d 925, 930 (5th Cir. 1984) (where the judge in a class action suit is a member of the class, recusal is not appropriate where the judge's interest is not "direct or immediate but remote or contingent"). 5 Although defendants characterize potential bias against them as "racial bias," and the dissenting opinion makes repeated reference to "racial bias" and "racial prejudice," see, e.g., slip op. at 9, 10, 11, 13, 15, 16, 17, the defendants do not seriously contend that jurors would be prejudiced against them because they were white. Therefore, the district court properly focused on moral and ideological, not racial, bias. 4 Failure to question individual jurors about facts or experiences that might have led to bias does not necessarily indicate that voir dire was constitutionally insufficient. Mu'Min v. Virginia, 111 S. Ct. 1899, 1908 (1991). The court in this instance adequately inquired into the potential jurors' possible biases against the defendants. The court used three methods to probe bias: an individual questionnaire, group voir dire, and individual voir dire. An examination of the court's methods show that the Saimiento-Rozo standard was satisfied. First, each prospective juror filled out a questionnaire asking for information regarding, inter alia, his or her occupation; his or her spouse's occupation; whether he or she regularly attended "church, temple, or other religious services"; whether he or she held "any offices in a church, temple, or religious organization" and, if so, what the office was; membership in any fraternal, social, professional or public service organizations; military service; and whether he or she had "heard or read" anything about the vandalism of Jewish properties, the incidents in the park, skinheads, or skinheads' involvement in any of the incidents. Next, the court conducted group voir dire. It explained the indictment and the presumption of innocence to the venire panel and asked whether the prospective jurors could follow the instructions. Three persons answered that they had heard too much about the case to abide by the presumption of innocence; 5 only two were identified in the transcript, both of whom eventually were struck for cause. After a number of standard questions, the court asked whether any person knew anyone in the Hammerskins or was a member of a racial supremacist group. The court then asked, Should the evidence show that the Confederate Hammerskins are a group which advocates white supremacy and that the Defendants are members of such a group SQ and I say should because you don't have any evidence before you at this time SQ could you give each of the Defendants the same presumption of innocence and the same benefit of following only the evidence adduced in court and the instructions or law that the Court gives you without any kind of bias or prejudice or sympathy or fear? [Emphasis added.] Two jurors answered yes and eventually were struck for cause. The court then asked, The charges in the indictment, and I repeat again that the indictment is just a charge and it is not evidence of any kind, legend and substance [sic, allege in substance?] that the Defendants acted to interfere with the constitutional protected rights of other persons because of their race or color or national origin. The Government may put on evidence to demonstrate the Defendants' racial beliefs. However, I instruct you that the Defendants are not on trial for their racial beliefs, whether you agree with those beliefs or don't agree with those beliefs. Now, is there anyone who could not follow that instruction? [Emphasis added.] [no response] There is this second instruction. You can use evidence of the beliefs of a Defendant to help decide whether the Defendant may have acted or may have been motivatedd [sic] to act in accordance with those beliefs but you are here as jurors only to judge matters under the Charge and not whether a Defendant believed in such and such a way, had a belief. Whether he acted is what you will be talking about. Anybody who can't follow that sort of instruction? [Emphasis added.] 6 [no response] Finally, the court briefly questioned each of the fifty- three prospective jurors individually.6 It asked what, if anything, he or she had read or heard about the case.
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